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F-2017-825

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Ryan Paul Farr v State Of Oklahoma

F-2017-825

Filed: May 9, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Ryan Paul Farr appealed his conviction for burglary and felonious possession of a firearm. His conviction and sentence were for twenty-five years for burglary and fifteen years for possession of a firearm, which will be served one after the other (consecutively). Judge Baldwin was involved in the case. Judge Kuehn dissented.

Decision

The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an error in allowing the State to re-open its case to re-present its witness?
  • Did evidence of other crimes deprive Appellant of a fair trial?
  • Did the mention of actual sentences in the documents used to support former felonies deprive Appellant of a fair trial?
  • Was there improper commentary on Appellant's right to remain silent?
  • Did the prosecutor improperly shift the burden of proof?
  • Did the prosecutor improperly reference what was perceived to be an uncharged crime?
  • Did prosecutorial misconduct deprive Appellant of a fair trial and due process of law?
  • Was the evidence insufficient to support the conviction of burglary?
  • Was the evidence insufficient to support a conviction for unlawful possession of a weapon?
  • Were the sentences excessive?
  • Did cumulative error deprive Appellant of a fair trial?

Findings

  • The trial court's ruling allowing the State to reopen its case was not an abuse of discretion.
  • Appellant did not show actual or obvious error regarding evidence of other crimes, thus no error was found.
  • No plain error was identified in the reference to suspended sentences and credit for time served within the judgment documents.
  • There was no actual or obvious error regarding the testimony about Appellant's failure to show up for a police interview.
  • The prosecutor did not shift the burden of proof, and thus there was no error in the prosecutor's comments.
  • The claims of prosecutorial misconduct did not render the trial fundamentally unfair; no errors were found.
  • There was sufficient evidence to support convictions for both second degree burglary and felonious possession of a firearm.
  • The sentences were not excessive, and no abuse of discretion was found in the trial court's decision to run the sentences consecutively.
  • The cumulative error argument has no merit as no errors were sustained in the preceding propositions.

F-2017-825

May 9, 2019

Ryan Paul Farr

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN, JUDGE:

Appellant, Ryan Paul Farr, was convicted at a jury trial in Carter County District Court, Case No. CF-2016-736, of Count 1: Burglary in the Second Degree, After Two or More Previous Convictions, in violation of 21 O.S.2011, § 1435; and Count 2: Felonious Possession of a Firearm, After Two or More Previous Convictions, in violation of 21 O.S.Supp.2014, § 1283. The jury recommended punishment of twenty-five (25) years imprisonment on Count 1 and fifteen (15) years imprisonment on Count 2. The Honorable Thomas K. Baldwin, Associate District Judge, presided at trial and sentenced Farr in accordance with the jury’s verdicts. Judge Baldwin ordered that the sentences for Counts 1 and 2 run consecutively. Judge Baldwin also ordered credit for time served.

Farr now appeals, raising eleven (11) propositions of error before this Court:

I. THE TRIAL COURT ERRED BY ALLOWING THE STATE TO RE-OPEN THE CASE TO RE-PRESENT ITS WITNESS;
II. EVIDENCE OF OTHER CRIMES DEPRIVED APPELLANT OF A FAIR TRIAL;
III. THE MENTION OF ACTUAL SENTENCES (WHICH INCLUDED SUSPENSION) IN THE DOCUMENTS USED TO SUPPORT FORMER FELONIES DEPRIVED APPELLANT OF A FAIR TRIAL;
IV. THERE WAS IMPROPER COMMENTARY ON APPELLANT’S RIGHT TO REMAIN SILENT;
V. THE PROSECUTOR IMPROPERLY SHIFTED THE BURDEN OF PROOF;
VI. THE PROSECUTOR IMPROPERLY REFERENCED WHAT HE PERCEIVED TO BE AN UNCHARGED CRIME;
VII. PROSECUTORIAL MISCONDUCT CONTINUED TO DEPRIVE APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW;
VIII. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION OF BURGLARY.
IX. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON;
X. THE SENTENCES WERE EXCESSIVE; and
XI. CUMULATIVE ERROR DEPRIVED APPELLANT OF A FAIR TRIAL.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED.

**Proposition I.** The trial court’s ruling allowing the State to reopen its case was not an abuse of discretion. The record shows Randy Farr’s testimony, given after the State was allowed to reopen, explained Deputy Bates’s testimony concerning her failure to find any guns in the floor cabinet when she arrived at the Farr residence. This tended to clarify for the jury Farr’s earlier testimony under such circumstances that did not constitute an abuse of discretion. 22 O.S.2011, § 831(4); Guy U. State, 1989 OK CR 35, I 19, 778 P.2d 470, 475; Jones v. State, 1969 OK CR 138, I 4, 453 P.2d 319, 320. Proposition I is denied.

**Proposition II.** Appellant did not register contemporaneous objections to any of the testimony now challenged in this proposition thus waiving review on appeal for all but plain error. Kirkwood v. State, 2018 OK CR 9, I 6, 421 P.3d 314, 317. To show plain error, Appellant must show an actual error, which is plain or obvious and that affects his substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Lamar U. State, 2018 OK CR 8, I 40, 419 P.3d 283, 294. Appellant fails to show actual or obvious error. Review of the challenged testimony does not reveal improperly admitted other crimes evidence at all. Rather, the vast majority of this testimony was properly admitted res gestae evidence. See Vanderpool U. State, 2018 OK CR 39, I 24, 434 P.3d 318, 324 (discussing res gestae evidence). Further, the testimony elicited by the State concerning other run-ins the family had with Appellant occurred after Appellant opened the door to such evidence on cross examination. We have repeatedly held that an appellant may not complain on appeal of error he has invited. Pierce v. State, 1990 OK CR 7, I 10, 786 P.2d 1255, 1259-60. There is no plain error. Proposition II is denied.

**Proposition III.** There is no actual or obvious error, and thus no plain error, from the reference to suspended sentences and credit for time served within the judgment and sentence documents used for enhancement of Appellant’s sentence. Terrell v. State, 2018 OK CR 22, II 6-7, 425 P.3d 399, 401. Proposition III is denied.

**Proposition IV.** Deputy Bates testified that Appellant spoke with her on the telephone, agreed to come to the sheriff’s office for an interview concerning the allegations in this case and that Appellant simply never showed up for the interview. Appellant fails to show actual or obvious error from the admission of this testimony. Appellant never invoked his Fifth Amendment privilege against self-incrimination during his conversation with Deputy Bates. Salinas U. Texas, 570 U.S. 178, 183-90, 133 S. Ct. 2174, 2179-83, 186 L. Ed. 2d 376 (2013) (plurality opinion). Thus, there is no plain error. Proposition IV is denied.

**Proposition V.** Appellant fails to show error with any of the prosecutor’s challenged comments in this proposition of error. The prosecutor did nothing more in the challenged passages than argue that the evidence was uncontroverted. The prosecutor did not shift the burden of proof. Thus there was no plain error from the comments by the prosecutor which drew no objection and no error warranting relief for the single comment that did draw an objection. Bosse U. State, 2017 OK CR 10, IT 85, 400 P.3d 834, 863; Pickens U. State, 2001 OK CR 3, I 39, 19 P.3d 866, 880. Proposition V is denied.

**Propositions VI and VII.** On claims of prosecutorial misconduct, relief will be granted only where the prosecutor committed misconduct that so infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon. Sanders U. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286. We have long allowed counsel a wide range of discussion and illustration in closing argument. Id. Counsel enjoy a right to discuss fully from their standpoint the evidence and inferences and deductions arising from it. Id. That is all the prosecutor did here. Appellant was not deprived of a fundamentally fair trial in violation of due process from any of the challenged comments. Appellant thus fails to show error from any of the comments challenged in these propositions of error, the vast majority of which are limited to plain error review because they drew no objection. Propositions VI and VII are denied.¹ To the extent Appellant challenges in Proposition VII comments by the prosecutor at transcript page 221, he has waived review of this claim. The cited pages of the trial transcript do not contain argument of the prosecutor but only the reading of the sentencing verdicts by the jury. Appellant has thus waived review on appeal of this portion of his Proposition VII claim by failing to provide relevant citations to the record in support. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Logsdon U. State, 2010 OK CR 7, 9 41, 231 P.3d 1156, 1169-70.

**Propositions VIII & IX.** Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to conclude beyond a reasonable doubt that Appellant committed the crimes of second degree burglary and felonious possession of a firearm as charged in this case. Jackson U. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Mitchell U. State, 2018 OK CR 24, IT 11, 424 P.3d 677, 682; Davis v. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111; Young v. State, 2000 OK CR 17, I 35, 12 P.3d 20, 35; Bolton U. State, 1985 OK CR 75, I 2, 702 P.2d 1040, 1041. Propositions VIII and IX are denied.

**Proposition X.** This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Pullen U. State, 2016 OK CR 18, I 16, 387 P. 3d 922, 928. We review the district court’s decision to run a defendant’s sentences consecutively or concurrently for abuse of discretion. Neloms U. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170. Here, the sentences imposed do not shock the conscience. Appellant fails to show either an excessive sentence or an abuse of discretion from the trial court’s decision to run the sentences in the present case consecutively. Proposition X is denied.

**Proposition XI.** We have found no error in the preceding propositions. This Court has held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Bivens U. State, 2018 OK CR 33, I 35, 431 P.3d 985, 996. Proposition XI is denied.

DECISION

The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

**APPEARANCES AT TRIAL**

JASON D. MAY
ATTORNEY AT LAW
222 STANLEY S.W.
ARDMORE, OK 73401
COUNSEL FOR DEFENDANT

**APPEARANCES ON APPEAL**

LISBETH L. MCCARTY
OKLA. INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

CRAIG LADD
DISTRICT ATTORNEY
CARTER COUNTY COURTHOUSE
20 B STREET S.W.
ARDMORE, OK 73401

MIKE HUNTER
ATTORNEY GENERAL

THEODORE M. PEEPER
ASST. ATTORNEY GENERAL
313 N.E. 21 ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR APPELLEE

OPINION BY: HUDSON, J.
LEWIS, P.J.: CONCUR
KUEHN, V.P.J.: CONCUR IN RESULTS
LUMPKIN, J.: CONCUR
ROWLAND, J.: CONCUR

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Footnotes:

  1. 22 O.S.2011, § 831(4); Guy U. State, 1989 OK CR 35, I 19, 778 P.2d 470, 475; Jones v. State, 1969 OK CR 138, I 4, 453 P.2d 319, 320.
  2. Kirkwood v. State, 2018 OK CR 9, "I 6, 421 P.3d 314, 317.
  3. Lamar U. State, 2018 OK CR 8, I 40, 419 P.3d 283, 294.
  4. Vanderpool U. State, 2018 OK CR 39, I 24, 434 P.3d 318, 324.
  5. Salinas U. Texas, 570 U.S. 178, 183-90, 133 S. Ct. 2174, 2179-83, 186 L. Ed. 2d 376 (2013) (plurality opinion).
  6. Bosse U. State, 2017 OK CR 10, IT 85, 400 P.3d 834, 863; Pickens U. State, 2001 OK CR 3, I 39, 19 P.3d 866, 880.
  7. Sanders U. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286.
  8. Jackson U. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Mitchell U. State, 2018 OK CR 24, IT 11, 424 P.3d 677, 682; Davis v. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111; Young v. State, 2000 OK CR 17, I 35, 12 P.3d 20, 35; Bolton U. State, 1985 OK CR 75, I 2, 702 P.2d 1040, 1041.
  9. Pullen U. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928.
  10. Neloms U. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
  11. Bivens U. State, 2018 OK CR 33, I 35, 431 P.3d 985, 996.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1435 (2011) - Burglary in the Second Degree, After Two or More Previous Convictions
  • Okla. Stat. tit. 21 § 1283 (2014) - Felonious Possession of a Firearm, After Two or More Previous Convictions
  • Okla. Stat. tit. 22 § 831(4) (2011) - Evidence and Testimony
  • Okla. Stat. tit. 22 § 3.5(A)(5) (2019) - Rule on Appellate Procedure

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

  • Guy v. State, 1989 OK CR 35, I 19, 778 P.2d 470, 475
  • Jones v. State, 1969 OK CR 138, I 4, 453 P.2d 319, 320
  • Kirkwood v. State, 2018 OK CR 9, I 6, 421 P.3d 314, 317
  • Lamar v. State, 2018 OK CR 8, I 40, 419 P.3d 283, 294
  • Vanderpool v. State, 2018 OK CR 39, I 24, 434 P.3d 318, 324
  • Terrell v. State, 2018 OK CR 22, II 6-7, 425 P.3d 399, 401
  • Salinas v. Texas, 570 U.S. 178, 183-90, 133 S. Ct. 2174, 2179-83, 186 L. Ed. 2d 376 (2013)
  • Bosse v. State, 2017 OK CR 10, IT 85, 400 P.3d 834, 863
  • Pickens v. State, 2001 OK CR 3, I 39, 19 P.3d 866, 880
  • Sanders v. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286
  • Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)
  • Mitchell v. State, 2018 OK CR 24, IT 11, 424 P.3d 677, 682
  • Davis v. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111
  • Young v. State, 2000 OK CR 17, I 35, 12 P.3d 20, 35
  • Bolton v. State, 1985 OK CR 75, I 2, 702 P.2d 1040, 1041
  • Pullen v. State, 2016 OK CR 18, I 16, 387 P. 3d 922, 928
  • Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
  • Logsdon v. State, 2010 OK CR 7, I 41, 231 P.3d 1156, 1169-70
  • Bivens v. State, 2018 OK CR 33, I 35, 431 P.3d 985, 996

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